Fight Over CEQA-Dodging Ballot Initiatives May Hit High Court

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Michael Zischke was quoted in a Nov. 1, 2012 article about a recent Fifth District Court of Appeal decision prohibiting public agencies from using ballot initiatives to sidestep environmental review requirements. The article notes that the ruling is a good candidate for review by the California Supreme Court because it is at odds with another California appellate ruling.

The Fifth District Court of Appeal ruling, issued on Oct. 30, involved the planned expansion of a Wal-Mart in Sonora. The court ruled that environmental review required under the California Environmental Quality Act (CEQA) could not be bypassed because a “public agency chooses to adopt a ballot initiative directly as an ordinance without a public vote.”

Some attorneys predicted that should the recent appeals court decision be reversed, developers will find it easier to avoid CEQA requirements. Zischke told Law360 that although more developers may use the initiative process to obtain approval for general planning and zoning proposals, many other projects would still have to go through the normal CEQA procedure.

“Only legislative actions can be approved through the initiative power, and most projects need some discretionary administrative or nonlegislative approvals in addition to legislative ones,” he said.

Zischke said he expects that environmental groups will become very involved should the Supreme Court accept the Wal-Mart case for review.

“If the [high] court takes the case, I anticipate that environmental groups will file one or more friend-of-the-court briefs supporting the decision of the [Fifth District] in this case,” he said.

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